Labow

The defendants were convicted of a conspiracy to “sell, possess and transport intoxicating liquor fit for beverage purposes, containing more than one-half of one per cent of alcohol by volume.” They appeal from the judgment and an order denying their motion for a new trial.

The first ground assigned for a reversal is that the indictment does not charge a public offense, and we shall at this time direct our attention to their argument in this particular. We have quoted that portion of the indictment claimed to be insufficient. It is insisted that it should have charged that the defendants conspired together that they would “unlawfully” sell, possess and transport intoxicating liquor, etc., and also that it fails to state that the liquors were for beverage purposes. The attorney-general asserts that the appellants waived the point relied upon by failing to demur to the indictment, and by waiting to urge it before the trial court until argument upon a motion in arrest of judgment. We think this contention must be sustained. It may be assumed that had a demurrer been interposed the indictment would have been fatally defective. But section 1185 of the Penal Code by its terms provides…